Modi, J. - (1.) THIS revision application by a judgment-debtor has arisen in the following circumstances: -
(2.) ONE Jasiram Jagannath had obtained a money-decree against the petitioner Nemichand. A house of Nemichand situated in village Loha-wat was auctioned in execution of that decree and was knocked down in favour of non-petitioner No. 1 Dhansukhdas. A sale certificate was accordingly issued in favour of the said Dhansukhdass on 18th July, 1951. On 27th July,. 1951, Dhansukhdass applied for possession of the house under O. XXI, rule 95 of the Civil Procedure Code. During the course of delivery of possession it was found that some apartments in the house were locked and so the auction purchaser Dhansukhdass applied to the executing court viz. , that of Munsiff Phalodi, that possession be delivered to him by breaking the locks open. On 8th August, 1951, the Munsiff ordered accordingly. It was then discovered that movables belonging to the petitioner were lying in some of these apartments and on the 27th August, 1951, the Munsiff proceeded to order the sale of these goods by public auction. The goods were subsequently sold on 29th October, 1951, in favour of non-petitioner No. 2 Naraindass for a sum of Rs. 216/- and the sale was apparently confirmed on the 9th November, 1951. This revision has been filed by the judgment-debtor from the aforesaid orders of the Munsiff Phalodi dated 27th August, 1951, and the 9th November, 1951. It may be pointed out here that in his re visional application, the petitioner has incorrectly stated the date of the order dated 9th November, 1951, as 29th October, 1951, but this error is not of much consequence as he has correctly filed the copy of the order dated 9th November, 1951, along with his revisional application. The contention of learned counsel for the petitioner is that the Munsiff Phalodi had no jurisdiction whatever to order the sale of the movables belonging to the petitioner, and that too without any notice to him, and that the sale so held was absolutely without jurisdiction and illegal. It may be pointed out at once that nobody had moved the executing court for the sale of the movables of the petitioner and the executing court seems to have adopted this extraordinary course on its own initiative. Besides, it was urged by learned counsel for the petitioner that the decree against him had been completely satisfied by the sale of the house and there was not the slightest justification for the sale of the petitioner's movables whether in execution of the decree against him or otherwise. In my opinion, there is considerable force in these contentions. Learned counsel for the non-petitioner No. 2 Naraindass argued that the executing court was competent to direct the sale of the movable property in the process of handing over possession of the house of the judgment-debtor in execution of the decree against him. I am unable to accept this proposition as in my opinion it is completely unintelligible to me why it should have been necessary for the executing court to direct the sale of the judgment-debtor's movable property which was lying in his house although it had been sold in execution of the decree against him. It was further urged by learned counsel for Naraindass that as the sale of the movables had taken place and had become absolute, no irregularity in the sale of movable property vitiated the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may insti-tute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery (Order XXI rule 78 ). All that this rule provides is that a sale of movable property in execution of a decree cannot be set aside merely on the ground of irregularity in publishing or conducting the sale; but it is obvious, to my mind, that this rule cannot have any application to cases where there is complete absence of jurisdiction to order the sale itself. In other words, Order XXI, rule 78 pre-supposes that the court has jurisdiction to order the sale of such property. Learned counsel for the petitioner cited Kuar Lakshmiraj Singh vs. Shankar (1) (A. I. R. 1930 All. 513.) in support of his contention. In that case, the decree-holder had sued for recovery of possession of a plot of land by removal of the material of the house of the judgment-debtors standing on it. A decree was passed directing such possession and was upheld in appeal adding costs to the original decree for possession. The decree-holder executed the decree for costs and applied at one and the same time for possession of the land and for attachment of the house of the defendants (judgment-debtors) in order to recover costs of the first two courts. The house was attached and on the same day the decree-holders applied for sale there of. No notice to the judgment-debtors under O. XXI, R. 66 was issued and the sale took place. The question for determination under the aforesaid circumstances was whether the property sold was movable or immovable. It was held, that the house was immovable property because it had not been detached at that time and the plaintiffs had not executed the decree for recovery of possession of the land by removal of the material of the house. It was observed, however, during the course of the judgment that if the house were really movable property, the sale would become absolute under R. 78 of O. XXI, and no court could set it aside in spite of any injustice that may be done to the judgment-debtors by wrong procedure adopted by the Court in omitting to issue notice to the judgment-debtor. It may be observed, however, that in this case the sale of the house was being properly effected in execution of a decree against the judgment-debtors. In the present case, however, as I have already pointed out above, there was no decree whatsoever which remained to be satisfied and the sale was completely gratuitous. If there were an outstanding decree against the petitioner and in satisfaction of that decree, the court had ordered the sale of the judgment-debtors' movable property and a sale had taken place, then such a sale would automatically become absolute and could not be attacked by virtue of O. XXI, R. 78, Civil Procedure Code although no notice to the judgment-debtors might have been given. It was next argued by learned counsel for the non-petitioner that even though the sale was illegal and without jurisdiction, no revision was competent to set aside such a sale. In my opinion, this contention is without any force. If the conclusion at which I have arrived above viz. , that the sale in this case was entirely without jurisdiction, is correct, as I think it is, I have no hesitation in holding that a revision against such an order does lie under sec. 115 C. P. C. It cannot be denied that there was a case decided, by a subordinate court, that no appeal lay to the High Court from the order passed below and further that the subordinate court in ordering the sale of the movables of the petitioner exercised a jurisdiction which was not vested in it by law. I am, therefore, clearly of opinion that a revision is competent in. the present case. The result is that I accept this revision, set aside the orders of the court below and hold that the order of the Munsiff, Phalodi, directing the sale of the movables of the petitioner is wholly unsustainable at law and I hereby set it aside. I further direct that the non-petitioner No. 2 Naraindass should restore the property which has been purchased by him, to the petitioner, and the former will get back the amount of Rs. 216/-deposited by him in the executing court. The petitioner will receive his costs in this Court from non-petitioner No. 2 Naraindass. .;